# Taneja

> District Court, E.D. New York · June 16, 2026

URL: https://www.frixlaw.com/law-library/cases/11363754

## Case

- **Full name:** Saurabh Taneja v. Director USCIS NSC Loren K. Miller, Secretary Alejandro Mayorkas, and Ur Mendoza Jaddou
- **Court:** District Court, E.D. New York
- **Decided:** June 16, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________

No 24-CV-05657 (RER)
_____________________

SAURABH TANEJA

VERSUS

DIRECTOR USCIS NSC LOREN K. MILLER,
SECRETARY ALEJANDRO MAYORKAS, AND UR MENDOZA JADDOU
___________________

MEMORANDUM & ORDER
___________________
RAMÓN E. REYES, JR., District Judge:
Saurabh Taneja petitioned the United States Citizenship and Immigration Services
(“USCIS”) for an extraordinary-ability visa, but USCIS denied his petition. He now
challenges that denial, arguing it was arbitrary and capricious under the Administrative
Procedure Act, 5 U.S.C. §§ 553, 701, et seq. He also attacks USCIS's method of
adjudicating such visas, claiming its approach is outside of its statutory authority,
contravenes its binding regulation, and relies on a policy memorandum that should be
classified as a legislative rule. Both parties move for summary judgment.
After carefully reviewing the record, and for the reasons set forth herein, the Court
GRANTS defendants’ motion and DENIES plaintiff’s motion.
BACKGROUND1
I. Statutory Background
The Immigration and Nationality Act (“INA”) contains five preference categories for

employment-based visas. 8 U.S.C. § 1153(b). Noncitizens applying under the first
category of “priority workers” may apply for an “extraordinary ability” visa. 8 U.S.C.
§ 1153(b)(1)(A). Such an application must demonstrate that the noncitizen:
(i) has extraordinary ability in the sciences, arts, education,
business, or athletics which has been demonstrated by
sustained national or international acclaim and whose
achievements have been recognized in the field through
extensive documentation,

(ii) seeks to enter the United States to continue work in the area
of extraordinary ability, and

(iii) entry into the United States will substantially benefit
prospectively the United States.

8 U.S.C. § 1153(b)(1)(A)(i)–(iii).
To satisfy the first point, a noncitizen must provide initial evidence that they
“sustained national or international acclaim and that his or her achievements have been
recognized in the field of expertise.” 8 C.F.R. § 204.5(h)(3). The evidence must be of a
“one-time achievement (that is, a major, international recognized award).” 8 C.F.R.
§ 204.5(h)(3); see also Jafarov v. U. S. Citizenship and Immigr. Servs., No. 23 Civ. 3372

1 The Court acknowledges and offers its deep gratitude to Maya Chrobot, a judicial intern and second year
law student at Fordham School of Law, for her assistance in researching and drafting this memorandum
and order.
(PAE), 2024 WL 69056, at *1 (S.D.N.Y. Jan. 2024). If the petitioner cannot do so, they
must provide at least three of the following:
(i) Documentation of the alien's receipt of lesser nationally or
internationally recognized prizes or awards for excellence in the field
of endeavor;

(ii) Documentation of the alien's membership in associations in the field
for which classification is sought, which require outstanding
achievements of their members, as judged by recognized national or
international experts in their disciplines or fields;

(iii) Published material about the alien in professional or major trade
publications or other major media, relating to the alien's work in the
field for which classification is sought. Such evidence shall include
the title, date, and author of the material, and any necessary
translation;

(iv) Evidence of the alien's participation, either individually or on a panel,
as a judge of the work of others in the same or an allied field of
specification for which classification is sought;

(v) Evidence of the alien's original scientific, scholarly, artistic, athletic,
or business-related contributions of major significance in the field;

(vi) Evidence of the alien's authorship of scholarly articles in the field, in
professional or major trade publications or other major media;

(vii) Evidence of the display of the alien's work in the field at artistic
exhibitions or showcases;

(viii) Evidence that the alien has performed in a leading or critical role for
organizations or establishments that have a distinguished reputation;

(ix) Evidence that the alien has commanded a high salary or other
significantly high remuneration for services, in relation to others in
the field; or

(x) Evidence of commercial successes in the performing arts, as shown
by box office receipts or record, cassette, compact disk, or video
sales.

8 C.F.R. § 204.5(h)(3)(i)–(x).
USCIS proceeds to the second step in evaluating the application only if finds that
the noncitizen proved the above criteria by a preponderance of the evidence. (See ECF
No. 1-9 at 4; see also USCIS Policy Memorandum PM 602-0005.1, Evaluation of
Evidence Submitted with Certain Form 1-140 Petitions; Revisions to the Adjudicator's

Field Manual (AFM) Chapter 22.2, AFM Update AD11-14 (Dec. 22, 2010)). The second
step is a “final merits determination,” in which USCIS evaluates the application in its
entirety to determine if “the noncitizen, by a preponderance of the evidence, has
demonstrated that he or she is “‘one of that small percentage who have risen to the very
top of the field of endeavor’ and received ‘sustained’ national or international acclaim.”
Jafarov, 2024 WL 69056, at *2 (citation omitted).
The agency implemented this two-step policy after the Ninth Circuit’s decision in
Kazarian v. U.S. Citizenship and Immigration Services, 596 F.3d 1115 (2010). In an
appeal from USCIS’ denial of an extraordinary ability visa, the court held that the
Administrative Appeals Office (“AAO”) improperly evaluated the petitioner’s evidence in

support of his application. Id. The AAO had previously determined that the petitioner did
not meet his burden of proof for at least three of the ten 8 C.F.R. § 204.5(h)(3) factors
because the evidence provided did not demonstrate “sustained acclaim.” Id. at 1121. But
the Ninth Circuit held that the determination of whether the petitioner has achieved
sustained acclaim is “not relevant to the antecedent procedural question of whether the
plaintiff has satisfied the criterion.” Id.; see also Hristov v. Roark, No. 09-CV-2731 (SLT),
2011 WL 471185, at *8 (E.D.N.Y. Sep. 30, 2011) (quoting Kazarian, 596 F.3d at 1121).
In response, USCIS released a policy memorandum later that year clarifying a two-part
approach with updated guidance on evaluating the evidence for extraordinary ability visas
(see ECF No. 1-9 at 2, 4).
II. Factual Background

Saurabh Taneja (“Plaintiff” or “Taneja”) is a citizen of India who applied for an
employment-based extraordinary ability visa, or EB-1A I-140 (“I-140”). (ECF No. 1
(“Compl.”) ¶ 25). He obtained a master’s degree in civil and environmental engineering
and a PhD in advanced infrastructure systems, both from Carnegie Mellon University.
(ECF No. 1-5 at 2). At the time of filing his I-140 application, Taneja worked for Flieber
Inc. (“Flieber”) as a lead data scientist, focused on “Indoor Localization and Demand
Sensing” and “seamless integration of data.” (Id. ¶¶ 25–26).
On August 28, 2023, Taneja filed with USCIS for an I-140 visa. (Id. ¶ 27). He
claimed to meet six of the criteria with the following evidence: (i) documentation of his
“receipt of lesser nationally or internationally recognized prizes or awards for excellence

in the field of endeavor;” (iv) evidence of his “participation, either individually or on a panel,
as a judge of the work of others in the same or an allied field of specification for which
classification is sought;” (v) evidence of his “original scientific, scholarly, artistic, athletic,
or business-related contributions of major significance in the field;” (vi) evidence of his
“authorship of scholarly articles in the field, in professional or major trade publications or
other major media;” (viii) evidence that he “has performed in a leading or critical role for
organizations or establishments that have a distinguished reputation;” and (ix) evidence
that he “has commanded a high salary or other significantly high remuneration for
services, in relation to others in the field.” (Id. ¶ 5). This documentation included records
of peer review Taneja conducted, his published work, reference letters, and salary
information. (See ECF No. 1-4 at 4–9).
On September 5, 2023, USCIS issued a Request for Evidence (“RFE”), noting that
Taneja provided sufficient evidence to meet two criteria: (iv) participation as a judge of

the work of others in the same or an allied field of specification and (vi) authorship of
scholarly articles in the field. (Compl. ¶ 5). USCIS explained that Plaintiff had failed to
satisfy initial evidence criteria (i), (v), (viii), and (ix) and provided an opportunity to submit
additional evidence. (Id.; ECF No. 1-6 at 4–10).
Based on his Nov. 20, 2023, response, USCIS found Taneja submitted enough
evidence to demonstrate his leading or critical role at Flieber and meet his burden under
8 C.F.R. § 204.5(h)(3)(viii), but still did not satisfy criteria (i), (v), or (ix). (ECF No. 1-4
at 3–18). Because Taneja had satisfied three of the ten requirements under 8 C.F.R.
§ 204.5(h)(3), USCIS conducted the second step, reviewing all the submissions to
determine if he demonstrated by a preponderance of the evidence “that he possesses the

high level of expertise required.” (Id. at 12). USCIS denied Taneja's petition on November
29, 2023, because he had not demonstrated “sustained acclaim” or that he had “risen to
the top of [his] field.” (Compl. ¶¶ 6, 12).
Taneja then filed his prior suit requesting declaratory and injunctive relief. See
Taneja v. Miller, 24-CV-00508 (DLI) (E.D.N.Y. Jan. 23, 2024). USCIS subsequently
reopened his I-140 petition and issued a Notice of Intent to Deny (“NOID”) which provided
Taneja a second opportunity to submit additional proof of satisfaction of the relevant
criteria. (See ECF No. 1-6 at 2). The NOID stated the evidence Taneja previously
submitted did not demonstrate “that his publication record is consistent with being among
the small percentage at the top of the field,” or that the “rate of citation to the petitioner’s
work is high relative to others in the field.” (Id. at 11–12). The parties stipulated to
dismissal without prejudice and the case was dismissed. (See Taneja, 24-CV-00508,
Order dated 3/28/2026). On April 23, 2024, Taneja submitted his timely response to the

NOID (see ECF No. 1-6 at 14), and on July 19, 2024, USCIS denied his I-140 petition for
a second time (ECF No. 1-4 at 2). USCIS concluded that while “the record demonstrates
that the petitioner is skilled and experienced in computing and machine learning,” “has
conducted original research in this field,” and “provided critical services for his employer
and their clients,” it “does not demonstrate that the petitioner has enjoyed sustained
national or international acclaim or has risen to the top of his field.” (Id.)
III. Procedural History
Plaintiff filed his complaint on August 13, 2024, alleging that Defendants violated
the Administrative Procedure Act (“APA”) and that the decision to deny his petition was

arbitrary and capricious. (See Compl. ¶¶ 46–63). He seeks declaratory and injunctive
relief, including judicial review of the EB-1A I-140 petition denial and an order “set[ting]
aside defendant USCIS’s Kazarian policy and 2-part test.” (Id. ¶¶ 46–63).2 On January
30, 2025, Defendants filed the certified administrative record (“CAR”). (see ECF Nos. 12–
25). Plaintiff served his motion for summary judgment on March 6, 2025, which
Defendants later filed as a courtesy (See ECF Nos. 26, 38, 39 (“Pl.’s Mem.”)). On July 7,
2025, Defendants filed their fully briefed cross motion for summary judgment and

2 At one point, Taneja refers to “plaintiff-wife’s” EB-1A I-140 application (Compl. ¶ 63), which the Court
assumed is a typographical error.
opposition to Plaintiff’s motion. (ECF Nos. 33, 34 (“Defs.’ Mem.”), 35 (“Pl.’s Opp’n), 36
(“Defs.’ Reply)).

LEGAL STANDARD
I. Summary Judgment
Where a party challenges a final agency action under the APA, and “‘the entire
case on review is a question of law,’ summary judgment is appropriate.”3 Kapoor v. U. S.
Citizenship and Immigr. Servs., 763 F. Supp. 3d 247, 254 (2025) (citing Noroozi v.
Napolitano, 905 F. Supp. 2d 535, 541 (S.D.N.Y. 2012)). In this context, the traditional
Rule 56 summary judgment standard does not apply. Id. (citing Jafarov, 2024 WL 69056,

at *3). Instead, the “district judge sits as an appellate tribunal,” deciding not whether there
is a genuine dispute of material fact but, whether, as a matter of law, the agency action
is consistent with the APA standard of review. Almakalani v. McAleenan, 527 F. Supp. 3d
205, 218 (E.D.N.Y. 2021); Kapoor, 763 F. Supp. 3d 247, 254 (2025) (“The question [of]
whether an agency's decision is arbitrary and capricious is a legal issue amenable to
summary disposition”) (citation modified).
II. Arbitrary and Capricious Review
A federal court may review an agency’s final action. 5 U.S.C. § 704. The final action
is unlawful only if it was “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law; . . . in excess of statutory jurisdiction, authority, or limitations,” or

“unsupported by substantial evidence.” Id. § 706(2)(A),(C),(E). If the agency “relied on

3 Accordingly, the Court reviews Defendants’ motion (ECF No. 33) as a motion for summary judgment, and
not a motion to dismiss.
factors which Congress has not intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for its decision that runs counter
to the evidence before the agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise,” then the decision is arbitrary and

capricious. Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins., 463
U.S. 29, 43 (1983).
An agency has abused its discretion “when it fails to present a rational explanation
for its decision or if the decision is devoid of any reasoning.” Noroozi, 905 F. Supp. 2d at
541 (S.D.N.Y. 2012) (quoting Sinistovic v. Holder, 429 Fed. Appx. 37, 39 (2d Cir. 2011)
(summary order)). The agency does not need to “provide written findings about every
piece of evidence that it consider[s].” Kakar v. U.S. Citizenship & Immigr. Servs., 29 F.4th
129, 132 (2d Cir. 2022) (citing Dibble v. Fenimore, 545 F.3d 208, 219 (2d Cir. 2008)).
Therefore, a court can “uphold a decision of less than ideal clarity if the agency's path
may reasonably be discerned.” Id. (quotation marks and citation omitted). To be

supported by substantial evidence, the agency’s decision must have been based on
“more than a mere scintilla” of evidence. United States v. Int'l Bhd. of Teamsters,
Chauffeurs, Warehousemen & Helpers of Am., 120 F.3d 341, 346 (2d Cir. 1997)
(quotation marks and citation omitted). A court may reverse the agency only if it “find[s]
that no reasonable fact finder could have come to USCIS's erroneous conclusion.” Cuckic
v. Jaddou, No. 21 Civ. 8395 (JPO), 2023 WL 2586031, at *4 (S.D.N.Y. Mar. 21, 2023).
DISCUSSION
Taneja challenges USCIS’ two-step policy itself (Count I), how it was created
(Count II), and its application to him (Count III).4 The Court addressed each challenge in
turn.

I. USCIS’ Final Merits Determination Comports with the Governing Statute
Taneja argues that 8 U.S.C. § 1153(b)(1)(A) does not allow for the application of
the agency’s final merits determination because Congress only delegated authority to
define “sustained national or international acclaim,” “achievements . . . recognized in the
field,” and “extensive documentation,” i.e., only phrases that explain how the petitioner
can demonstrate their extraordinary ability, but not the term “extraordinary ability” itself.
(Pl.’s Mem. at 23–25). Without such authority, his argument goes, USCIS cannot require
that the petitioning noncitizen be “one of that small percentage who has risen to the very
top of the field of endeavor” because the language for this “substantive standard” comes
from legislative history, rather than the statute itself. (See id. at 25–27) (quoting 8 C.F.R.

§ 204.5(h)(2)). Defendants argue that the statute’s introductory sentence “requires USCIS
to determine whether a particular applicant has ‘extraordinary ability’ in his field,” and the
statutory requirement that “petitioner’s extraordinary ability must be ‘demonstrated by
sustained national or international acclaim’” authorizes USCIS to make a finding of “long-
term acclaim.” (Defs.’ Mem. at 24). The Court agrees.

4 Taneja erroneously labels his third cause of action as “Count IV”. (Compl. at 17). The Court names this
cause of action as “Count III.”
“Courts must exercise their independent judgment in deciding whether an agency
has acted within its statutory authority” and “may not defer to an agency interpretation of
the law simply because a statute is ambiguous.” Loper Bright Enters. v. Raimondo, 603
U.S. 369, 412–13 (2024). Therefore, to determine whether an agency exceeded the

bounds of its statutory authority, the Court must use the “traditional tools of statutory
construction” to determine the extent of power Congress delegated to USCIS through 8
U.S.C. § 1153(b)(1)(A). See Id. at 401 (2024) (imploring courts to use these tools
especially for questions about the scope of an agency’s power).
Accordingly, the Court begins with the plain text of the statute. Wisconsin Cent. Ltd
v. United States, 585 U.S. 274, 285 (2018) (“A fundamental canon of statutory
construction is that, unless otherwise defined, words will be interpreted as taking their
ordinary, contemporary, common meaning.”) (quoting Perrin v. United States, 444 U.S.
37, 42 (1979)); accord. Bloomberg L.P. v. U.S. Postal Serv., 118 F.4th 307, 317 (2d Cir.
2024) (“When a statute does not define a specific term, we look to its ordinary meaning

found in contemporary dictionary definitions.”) (citation modified).
In 1989, one year before Congress passed the relevant law, the Oxford English
Dictionary defined “extraordinary” in various ways including “[o]ut of the usual or regular
course or order; often in expressed opposition to ordinary,” and “[o]f a kind not usually
met with; exceptional; unusual; singular.” Extraordinary (def. 1, 3), Oxford English
Dictionary (2d ed. 1989); accord Extraordinary (def. 1a, 1b), Webster’s Ninth New
Collegiate Dictionary (9th ed. 1983) (“[G]oing beyond what is usual, regular, or customary”
and “exceptional to a very marked extent.”); Extraordinary, Black's Law Dictionary (5th
ed. 1979; 6th ed. 1990) (“Out of the ordinary; exceeding the usual, average, or normal
measure or degree; beyond or out of the common order, method, or rule; not usual,
regular, or of a customary kind; remarkable; uncommon; rare; employed for an
exceptional purpose or on a special occasion.”). The same Oxford English Dictionary had
multiple entries for the definition of “ability,” including “faculty, capacity (to do or of doing

something)” and “[m]ental power or capacity; talent, cleverness.” Ability, (def. 2, 5), Oxford
English Dictionary (2d ed. 1989); accord Ability, Webster’s Ninth New Collegiate
Dictionary (9th ed. 1983) (“[C]apacity, fitness, or tendency to act or be acted on in a
(specified) way.”); Ability, Black's Law Dictionary (5th ed. 1979; 6th ed.1990) (“Capacity to
perform an act or service.”). Although all three dictionaries include a definition of
“extraordinary” as something unusual or out of the ordinary, the Oxford English Dictionary
notes that definition is often used opposite “ordinary,” which is not used in 8 U.S.C.
§ 1153(b)(1)(A), rendering those definitions less applicable. An individual who has an
“extraordinary ability,” then, is one who has the capacity or talent to do something
exceptional, unusual, or rare.

This understanding is bolstered by the term’s statutory context. Section 1153
creates a secondary visa category for noncitizens of “exceptional ability”—also not
defined, but requiring fewer qualifications. See 8 U.S.C. § 1153(b)(2) (emphasis added);
see also Kazarian, 596 F.3d at 1120 (“To qualify for the ‘exceptional ability’ visa, a
petitioner must make a lesser showing of ability . . .”). It would be illogical for Congress to
create two visa categories with distinct standards but intend them to be equally exclusive,
or that the category with the “lesser showing of ability” would be reserved for those with
more impressive accolades than the category requiring a higher showing of ability.5
“Extraordinary ability” is necessarily more rigorous than “exceptional ability,” and USCIS’
definition accords with “the best meaning” of the statute. See Loper Bright Enters. at 400
(requiring courts “to determine the best reading of the statute” because “statutes . . . do—

in fact, must—have a single, best meaning.”).
Unfortunately for Taneja, he provides no binding case to support his understanding
of the grant of power to the agency.6 As defendants note, Congress granted the Secretary
of Homeland Security the power to “establish such regulations . . . and perform such other
acts as he deems necessary for carrying out his authority under the provisions of this
chapter.” 8 U.S.C. § 1103(a)(3). It does not follow that with no explicit restriction in 8
U.S.C. § 1153(b)(1)(A), the power granted by 8 U.S.C. § 1103(a)(3) would not allow
USCIS to “‘fill up the details’ of [this] statutory scheme” and define an essential term.
Loper Bright Enters., 603 U.S. at 395.
Therefore, the Court grants summary judgment for Defendants on Count I.

5 This conclusion also emerges by comparing the text of the statute that creates each visa. Compare 8
U.S.C. § 1153(b)(1)(A) (requiring the petitioner demonstrate their applicability in category through
“sustained national or international acclaim” and who has “extensive documentation” of the recognition they
have received in their field), with 8 U.S.C. § 1153(b)(2)(A) (requiring the petitioner demonstrate that they
hold an advanced degree and will substantially benefit the United States because of their “exceptional
ability”).

6 Taneja’s motion papers provide no cases at all to support this proposition. On January 28, 2026, he
notified the Court of Mukherji v. Miller, 24-CIV-3170 (JFB), 2026 WL 895708 (D. Neb. Jan. 28, 2026),
litigated by his same counsel, which did not explicitly analyze the statute at issue, but found that the final
merits determination violated notice and comment rulemaking. (See ECF No. 41). A prior non-binding case,
also litigated by same counsel, found the opposite, upholding the policy on both statutory and rulemaking
grounds. See Nagaiah v. Allen, 784 F. Supp. 3d 798, 813 (E.D. Pa. 2025).
II. USCIS’ Final Merits Determination Comports with Agency Regulations
Taneja argues that even if section 1153(b)(1)(A) allows USCIS to define
“extraordinary ability,” and its definition is proper, the agency’s “binding regulations do not
allow for the application of the agency’s ‘final merits determination’ test”. (Pl.’s Mem. at

17). He contends that 8 C.F.R. § 204.5(h) clearly and unambiguously requires nothing
more of an applicant than meeting the listed criteria. (Id. at 22). Even if the regulation
were ambiguous, he maintains the final merits test either doesn’t fall within the “outer
bounds of permissible interpretation” or does not reflect “fair and considered judgment.”
(Id. at 22–23). Defendant argues that the final merits determination survives Taneja’s
arguments (Defs.’ Mem. at 6), and the Court agrees.
If an agency regulation is unambiguous, it “just means what it means—and the
court must give it effect, as the court would any law.” Kisor v. Wilkie, 588 U.S. 558, 574–
75 (2019). To determine if there is ambiguity, a court considers “the text, structure, history,
and purpose of a regulation, in all the ways it would if it had no agency to fall back on.” Id.

at 575 (citation omitted). If it is ambiguous, a court accords some deference to the
agency’s interpretation, but “the agency’s reading must still be ‘reasonable.’”7 Id. (citation
omitted).
Here, the text of 8 C.F.R. § 204.5(h) is not ambiguous. After defining “extraordinary
ability,” it instructs applicants on the “initial evidence” that must accompany their petition

7 Plaintiff dedicates considerable currency arguing that the regulation is ambiguous and therefore requires
Kisor’s extensive determination on whether Auer deference applies. (See Pl.’s Mem. at 18–23). As the
Court independently finds USCIS’ two-step process consistent with both the relevant statute and
unambiguous regulation, it does not engage in such analysis.
and explains that “such evidence” shall include a “a one-time achievement” or at least
three of ten possible criteria. 8 C.F.R. § 204.5(h)(3). Taneja argues the use of “such” sets
out an evidentiary requirement and therefore constitutes “a complete rule setting a
complete standard.” (See Pl.’s Mem. at 21). That interpretation not only contravenes the

plain meaning of the regulatory language but also belies the logic of a highly selective
visa process in the first place. As other courts have reasoned, the plain meaning of “initial”
precludes a presumption of approval by an applicant simply providing such evidence they
believes to fit the criteria; proffering the “initial evidence” is “necessary but not sufficient”.
See, e.g., Nagaiah v. Allen, 784 F. Supp. 3d 798, 814 (E.D. Pa. 2025); Jafarov, 2024 WL
69056, at *9 (citing Amin v. Mayorkas, 24 F.4th 383, 395 (5th Cir. 2022) (“If the three
criteria . . . are enough to automatically show [sustained national or international] acclaim,
then the ‘extraordinary ability’ visa will look less like an Einstein visa and more like a Lake
Wobegon one.”)). Instead, applicants provide at least three criteria from a possible ten,
and USCIS then evaluates the entirety of the submissions against its definition of

“extraordinary ability:” an evaluation akin to any highly selective admission process,
where simply submitting the required documents could not possibly guarantee admission.
Amin, 24 F.4th at 391 (“As most college applicants learn, submitting all the required
application materials does not guarantee a favorable decision.”).
Further, the regulation’s inclusion of possible “comparable evidence” if the ten
criteria “do not readily apply to the beneficiary's occupation,” 8 C.F.R. § 204.5(h)(4), does
not “lead[] to the negative inference that the regulation has no other requirements
regarding the type of proof that a noncitizen must submit to demonstrate their possession
of extraordinary ability” as Taneja submits (Pl.’s Mem. at 21–22). It simply demonstrates
USCIS’ awareness that the list of criteria is non-exhaustive. If an applicant submits
“comparable evidence,” wouldn’t USIS need to evaluate it? Offering the option of
“comparable evidence” merely contemplates an agency officer’s overall evaluation.8
III. USCIS’ Final Merits Determination Did Not Require
Notice and Comment Rulemaking

Taneja argues that USCIS’ explicit adoption of the two-step process constitutes a
legislative rule that did not undergo required notice-and-comment rulemaking and is
therefore invalid. (Pl.’s Mem. at 28). He relies on a 2010 USCIS policy memorandum,
and both a withdrawn 1995 Notice of Proposed Rulemaking (“NPRM”) and 2011 external
Ombudsman’s report that labeled the proposed final merits determination as a
substantive rule. (Id.) Defendants submit that, consistent with caselaw across several
circuits, the policy is an interpretive rule where notice-and-comment rulemaking is
unnecessary. (Def.’s Mem. at 30). Defendants are correct.
The requirements of notice-and-comment rulemaking only apply to legislative rules,
and not to “interpretative rules, general statements of policy, or rules of agency
organization, procedure, or practice.” 5 U.S.C. § 553; see also Lincoln v. Vigil, 508 U.S.
182, 196 (1993); Time Warner Cable Inc. v. F.C.C., 729 F.3d 137, 168 (2d Cir. 2013). A
legislative rule “create[s] new law, rights, or duties, in what amounts to a legislative act.”
Sweet v. Sheahan, 235 F.3d 80, 91 (2d Cir. 2000) (citing White v. Shalala, 7 F.3d 296,

303 (2d Cir.1993)). Interpretive rules do not create new rights, but “clarify an existing

8 Taneja also argues that the regulatory history renders the regulation unlawful, referencing various agency
documents, noted infra section III. (Pl.’s Mem. at 28). After considering the text, structure, and purpose of
the regulation, a review of those documents does not change the Court’s analysis, and they are
nevertheless non-binding on the agency.
statute or regulation.” White, 7 F.3d at 303; see also Perez v. Mortg. Bankers Ass'n, 575
U.S. 92, 97 (2015) (“[T]he critical feature of interpretive rules is that they are ‘issued by
an agency to advise the public of the agency's construction of the statutes and rules which
it administers.’”) (citation omitted). Rather than look to the agency’s own classification of

a rule, courts assess “what the agency does in fact.” Lewis-Mota v. Sec'y of Lab., 469
F.2d 478, 482 (2d Cir. 1972). The Second Circuit endorsed the factor analysis laid out in
American Mining Congress v. Mine Safety & Health Administration, 995 F.2d 1106, 1112
(D.C.Cir.1993)), for differentiating legislative or interpretive rules:
“(1) whether in the absence of the rule there would not be an adequate
legislative basis for enforcement action or other agency action to confer
benefits or ensure the performance of duties, (2) whether the agency has
published the rule in the Code of Federal Regulations, (3) whether the agency
has explicitly invoked its general legislative authority, or (4) whether the rule
effectively amends a prior legislative rule. If the answer to any of these
questions is affirmative, we have a legislative, not an interpretive rule.”

Williams v. Smith, No. 22-CV-1630 (SVN), 2024 WL 3292725, at *16 (D. Conn. July 3,
2024) (citing Sweet, 235 F.3d at 91), aff'd, No. 24-2733, 2026 WL 1045419 (2d Cir. Apr.
17, 2026).
Just as the Court may not take the agency’s classification of a rule at face value,
neither must it accept Taneja’s unsupported conclusions. Although he quotes non-binding
authorities to describe the 2010 policy memorandum (Pl.’s Mem. at 27–28), this amounts
to a circular “because I said so” argument. Taneja does not offer analysis as to why the
memorandum satisfies any of the characterizations the Court must consider—perhaps
because none of them would identify the two-step process as a legislative rule. See
Williams, 2024 WL 3292725, at *16. As outlined above, the regulation already
contemplates a final merits determination, or totality of the circumstances assessment.
The documents on which Taneja relies only counter his argument: at best they confirm
that proffering evidence to meet the regulation’s criteria does not alone confirm eligibility
for the extraordinary-ability visa, nor did it before USCIS issued the memorandum. (See
ECF No. 1-9 at 4) (explaining that USCIS agreed with the Kazarian Court that the overall

evaluation of the evidence should happen as a second step, rather than concurrent with
a determination of what evidence an applicant has submitted). The Court aligns with
other district and circuit courts in determining that the final merits determination is not a
legislative rule and the memorandum did not “create new . . . duties.” Sweet, 235 F.3d at
91. It solely “clarif[ied] an existing statute or regulation,” White, 7 F.3d at 303, by
specifying when the final determination step would happen (see ECF No. 1-9 at 4–5),
thereby “advis[ing] the public” of its method of “administering” the relevant statue and
regulation, Perez, 575 U.S. at 97. 9 Contrary to Taneja demands (Pl.’s Mem. at 16),
USCIS was not required to “provide a reasoned explanation for a change,” “display an
awareness of a change,” or “show good reasons for a change” because there was no

policy change. Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221 (2016).
Accordingly, the Court grants summary judgment to Defendnats on Count II.

9 As Defendants note, numerous courts across several circuits have similarly determined the final merits
determination and 2010 policy memorandum as indicative of an interpretive rule. (Defs.’ Mem. at 30; Reply
at 13–14) (citing Nagaiah, 784 F. Supp. 3d at 817 n.7 (E.D. Pa. 2025) (collecting cases)).
IV. USCIS’ Denial of Plaintiff’s Application was not Arbitrary and Capricious
Taneja contends that USCIS “improperly rejected evidence of his qualification
under 8 C.F.R. §204.5(h)(3).” (Pl.’s Mem. at 7). This argument rests primarily on his
arguments that the final merits determination itself is invalid. His papers otherwise do not

argue why his individual denial was arbitrary and capricious, except for a brief statement
that “USCIS made critical errors in its review of the evidence that the plaintiff submitted
in support of his claims under § 204.5(h)(3)(v) and (ix).” (Id. at 15). As the Court
determines USCIS’ process to comport with its statutory and regulatory basis, there is
little left for the Court to address on this Count.
In identifying USCIS’ purported errors, Taneja offers as one example its
assessment of his salary that “was $16,000 higher than the 90th percentile for Data
Scientists nationwide,” “$27,000 higher than the U.S. Department of Labor’s Wage Level
4 for the New York metropolitan statistical area,” and “‘nearly double’ the salary” for lower-
level data scientists at his employer. (Id.) But Taneja cannot reasonably argue that salary

data alone would be dispositive for a favorable adjudication of his application. As
explained above, submitting any of the required criteria under 8 C.F.R. § 204.5(h)(3) does
not guarantee approval. See Jafarov, 2024 WL 69056, at *9 (S.D.N.Y. Jan. 5, 2024)
(determining as reasonable USCIS’ evaluation of similar salary data as impressive but
not placing the applicant at the very top of his field). “To hold otherwise would appear to
require USCIS to find that all employees—absent other disqualifying characteristics—in
the 90th percentile of their given field have reached that field's pinnacle.” Id. Such a
requirement would render the extraordinary visa categorically less exclusive than the
statue and regulation describe.
The Court does not doubt Taneja’s professional accomplishments, but it has no
reason to determine that USCIS’ denial of his extraordinary visa application was arbitrary
and capricious. Therefore, the Court grants summary judgment for Defendants on Count
III.

CONCLUSION
For the reasons set forth above, the Court grants Defendants’ motion for summary
judgment (ECF No. 33) and denies Plaintiff’s motion for summary judgment (ECF No. 38).
The Clerk of Court is respectfully directed to enter judgment for Defendants and
close the case.

SO ORDERED.

/s/ Ramón E. Reyes, Jr.
RAMÓN E. REYES, JR.
United States District Judge

Dated: June 16, 2026
Brooklyn, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11363754. Public record. Not legal advice.